Intersex person who was denied a passport over gender designation sues U.S. government

Dana Zzyym needed a U.S. passport, but the application offered only two gender choices: male or female. For Zzyym, neither was accurate.

Zzyym was born with ambiguous genitalia and identifies as intersex, neither male nor female. Zzyym — who uses the gender-neutral pronouns “they” and “them” — was denied a passport after the State Department declined to let Zzyym use the gender marker “X.”

Zzyym, a Fort Collins, Colo., resident and Navy veteran, has sued the State Department, saying the federal government violated the Constitution’s guarantees of due process rights and discriminated against Zzyym based on gender. The suit names Secretary of State John F. Kerry as a defendant and alleges that in order to get a passport, Zzyym would have had to lie under penalty of perjury.

Oral arguments in the case were presented Wednesday in U.S. District Court in Denver before Judge R. Brooke Jackson. A decision is forthcoming.

“Dana, a U.S. veteran and American citizen, refused to lie and subject themself to a criminal penalty in order to complete a government form,” said Paul Castillo of Lambda Legal, one of Zzyym’s attorneys. “The passport was denied not based on misrepresentation on the form or misconduct or fraud but because of who Dana is.”

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Zzyym tried to apply for a passport in 2014 to attend the International Intersex Forum in Mexico City. In an application packet, Zzyym presented a birth certificate, which lists gender as “unknown,” and statements from multiple Department of Veterans Affairs doctors confirming that Zzyym is intersex, Castillo said.

In an interview, Zzyym said Zzyym presented a VA identification card, which does not list a gender, as well as a personal letter stating their gender identity, but still was denied.

“This is who I am,” Zzyym said. “This is how I was born. Many people are able to get their passports with their biological sex, and I should be allowed to do the same thing.”

The State Department declined to comment on pending litigation.

When Zzyym, 58, was born in Michigan with ambiguous genitalia, doctors initially left the sex designation on the birth certificate blank, according to the lawsuit. Shortly after birth, Zzyym’s parents decide to raise their child as a boy named Brian Orin Whitney. The birth certificate was filled in as “male.”

As a young child, Zzyym underwent numerous gender-assignment surgeries, which, Zzyym said, left severe scarring and still cause physical pain. Zzyym’s family never explained the surgeries or that Zzyym was born intersex, Zzyym said.

While identifying as a male, Zzyym enlisted in the Navy, completing three tours of duty in Lebanon and one tour through the Persian Gulf, according to the lawsuit.

After leaving the military, Zzyym researched the scars and started to ponder questions of identity. A Veterans Affairs urologist confirmed Zzyym’s intersex identity in 2009. Whitney’s name was legally changed to Dana Alix Zzyym in 1995.

Zzyym tried living as a female, but “living as a woman was not right either,” the lawsuit states. In 2012, Zzyym amended the gender marker on Zzyym’s birth certificate to “unknown.”

Some countries, including Australia, New Zealand and Nepal allow people to mark their gender as “X” or “other” on their passports.

The State Department since 2010 has allowed transgender people who have completed clinical treatment to list the gender corresponding with their identity on their passports with a doctor’s statement. Transgender people who are in the process of transitioning genders can be issued temporary, two-year passports.

In June, an Oregon judge ruled that Jamie Shupe, a 52-year-old retired Army veteran, could legally identify as “non-binary,” rather than male or female.

In court filings, the State Department said current policy dictates that passport applicants check male or female and that Zzyym’s application was handled appropriately and without discrimination.

“Allowing passports with sex markers other than ‘F’ or ‘M’ would compromise the department’s efforts to prevent identity theft and passport fraud by upending the department’s long-established system for validating the identity and citizenship of passport applicants and requiring the department to rely on less reliable and less uniform identification documents,” the government argued.

When Zzyym applied for a passport, Zzyym presented a Colorado driver’s license that lists the driver as female, according to the State Department. Castillo, the attorney, said Zzyym tried to change the driver’s license designation as well and was unsuccessful.

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Twitter: @haileybranson

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UPDATES:

6 p.m.: The story was updated to clarify State Department passport policies for transgender people.

The story was originally published at 2:15 p.m.